WASHINGTON — In over three transformative years as the country’s top antitrust regulator, Federal Trade Commission Chair Lina Khan has faced down powerful foes, from against a challenge in late July.
Regardless of how Brown rules, her decision is sure to be appealed to the even more conservative 5th U.S. Circuit Court of Appeals, and then to the U.S. Supreme Court, which begins its next session Oct. 7.
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Given the conservative Supreme Court’s tendency to side with big business over the regulatory state, a favorable ruling for the FTC seems improbable.
But in the meantime, the rule might take effect and prompt businesses to adopt practices they might not undo right away. Khan’s allies in the world of anti-monopoly policymaking believe that, one way or another, the combined journalistic, congressional and regulatory scrutiny on the harms caused by noncompete agreements means the employment restrictions are not long for this world.
“Even if the FTC rule is overturned, there are still many other efforts afoot to undermine the use of these agreements,” said Lee Hepner, senior legal counsel for the American Economic Liberties Project, an anti-monopoly think tank that’s supportive of the noncompete ban. “It’s a multipronged strategy.”
